Walls VIB: Opening in a Wall and Preserving Conservatism

Canada and the International Red Cross

Yesterday, I circulated to a few friends a CBC interview with my friend, Irwin Cotler, on the SNC Lavalin Affair that is roiling political life in Canada (https://www.cbc.ca/listen/shows/the-house/segment/15674284) After that, Jane Philpott resigned from cabinet after considering Jody Wilson-Raybould’s testimony before the House of Commons justice committee.

Jane resigned over her differences with cabinet colleagues since she could not reconcile her criticisms of how the government had dealt with Jody versus her commitment to the principle of cabinet solidarity. At the centre of the debate was the wall that separated the Attorney General’s right and responsibilities to determine which prosecutions should go ahead and her cabinet responsibilities with respect of public policy and cabinet solidarity. My suggestion is that there has been too much emphasis on the wall and too little on the way openings in the wall should and can be exploited to encourage dialogue across the wall and, possibly, reconciliation.

In the CBC interview, Irwin described the tension between the role of the Attorney General and Justice Minister to speak truth to power at the same time being mindful of the need of ALL ministers to take into account policy and respect cabinet solidarity. Irwin was clearly impressed with Jody’s evidence and noted that she has a habit of taking detailed notes. Irwin had once recommended that the of taking minister responsible for prosecutions should NOT be in cabinet to ensure that a wall be retained between the duties of a Justice Minister to prosecute crimes on the one hand and, on the other hand, to participate in the formulation of public policy.

His recommendation was not accepted. Irwin says that he was faced with a similar tension, but did not see it necessary to resign when policy overruled the recommendation to pursue a criminal prosecution. Irwin distinguished intentions of an action and its consequences, suggesting that the evidence revealed thus far did not support a conclusion that the PM intended to stop or intervene in a prosecution, but the effect of persistent pressure may have had that effect. Irwin suggested that the continuing pressure beyond the point when Jody said, “Enough is enough” and decided the criminal prosecution should go forward, possibly had crossed a red line. However, further efforts at persuasion were inappropriate though not criminal. Finally, Irwin openly indicated that the inquiry is only at the beginning and testimony would be offered by many others as well as concrete evidence.

Should there be a wall between decisions to proceed with prosecutions and determinations of public policy such that the Attorney General not even be part of cabinet? Or should the wall be porous to facilitate a dialogue between issues of public policy and decisions to pursue prosecutions which therefore could not be entirely free from political interference?

The recent case of Meng Wanzhou, the chief financial officer of Huawei Technologies Ltd., who was arrested on 1 December 2018 at the request of the United States, is another case in point. U.S. Authorities want her extradited to face bank fraud charges. It is unclear the extent to which the American decision to prosecute was motivated by its trade disputes with China. Was there a direct link between a decision to prosecute and American trade policy? The debate has certainly affected Canada’s relationship with China in at least two areas.

China detained two Canadians, allegedly over the issue of the Chinese technology executive being arrested by Canadian authorities and facing possible extradition from Canada to the United States. Michael Spavor, a businessman in Beijing, and Michael Kovrig, a former Canadian diplomat living in the northeastern city of Dandong in China, were arrested on suspicion of “engaging in activities that endanger the national security” of China.

The repercussions on public policy of a prosecutorial decision have not only affected China-Canada diplomatic relations, but economic relations as well. Northwest Territories Premier Bob McLeod announced that he was putting on hold a trade mission intended to be sent to China in light of the arrest of the two Canadians. Should the Canadian cabinet have discussed the possible public policy implications of detaining Meng Wanzhou and possibly prevented her arrest given the serious international repercussions and the detrimental economic and political affects?

The issue of walls between policy debates and issue of justice concern not only criminal but international justice as well. They concern not only the issues of democratic governments in a nation-state but the conduct of international humanitarian agencies as well. The International Committee of the Red Cross (ICRC) provides a case given its determination to maintain a wall between its primary objectives and all other possible issues, including other humanitarian obligations, some similar to the SNC Lavalin case insofar as they concern economic issues and some distinctly different because they concern ethical priorities that translate into humanitarian policies.

According to the commentary of my Geneva colleague, Danny Warner (http://danielwarner.blog.tdg.ch/archive/2019/02/13/the-red-cross-crossroad-297300.html), a recent interview in the Tribune de Genève with the director general of the International Committee of the Red Cross (ICRC), Yves Daccord, and a letter/response from a former ICRC delegate, Thierry Germond, signalled a crisis at the ICRC and in the humanitarian ethos. On one level, it is about tradition versus change. On another level, it is about much more. It is about whether to build a firewall around an institution’s mandate in order to protect that mandate.

ICRC humanitarianism always prioritized the separation of the humanitarian goals from business and politics ever since Henry Dunant founded the organization, even though he needed money to fund access to victims and prisoners of war in situations of violent conflict. At the same time, he was involved in the promotion and development of humanitarian law that could take primacy over state law. That has been the tradition of the ICRC and usually it has managed to sail safely between the need for independence and its diplomatic dealings with states and donors.

ICRC’s current President Peter Maurer joined the Foundation Board of the World Economic Forum (WEF) to enable the ICRC to access both decision-makers and potential donors. When Hillary Clinton gave highly paid speeches to Wall Street, did that not create a suspicion that she could easily become a tool of major financial institutions? Would it not have been worse if she had accepted membership on the board of one of those financial institutions or an overarching body? There is always a tension between a non-profit or charitable organization’s need for money and the necessary obligation to ensure that it is not influenced or seen to be influenced by that money. In order to fulfill ICRC’s mandate, should Peter Maurer not have declined an invitation to join the WEF board?

ICRC has developed a number of practices to enable it to protect its mandate and not kowtow to powerful organizations. However, in many cases, a method of confidentiality developed over decades may clearly seem to indicate that the ICRC is in the pocket of the perpetrators. In the case of the Abu Ghraib torture victims, in order to protect access to those prisoners, ICRC remained silent about the crimes being committed. ICRC chose to protect the principle of confidentiality to ensure access, but risked a charge of complicity as a bystander to torture.

The tension is not always between the ICRC and a perpetrator, but sometimes even with another humanitarian agency. In 1982, under the auspices of the Refugee Documentation Project at York University, we went to Lebanon to count the number of refugees made homeless by the Israeli invasion of Lebanon. We were impelled to do so when OXFAM (UK) published full page ads in British newspapers claiming that 600,000 had been made homeless by the Israeli invasion. Since we were otherwise involved in verifying counts of Palestinian refugees, since virtually the only ones made homeless in Lebanon were Palestinians because of Israeli attacks on Palestinian refugee camps, and because, at the very most, there were only 250,000 refugees in those camps and most seemed not to be homeless, we went to undertake an accurate count. We had a scholarly agenda. We wanted to demonstrate that even in the times of war, one could make reasonably accurate estimates of the number of displaced persons.

Israel claimed to have made its own count. The government insisted that, according to its count, 27,000 had been made homeless. There was an enormous discrepancy between 27,000 and 600,000. There is a convoluted story about how we got into Lebanon in the midst of a war to undertake our counts, which I hint at later, hint because it is not germane to the theme of this blog. Suffice it to say, I ended up in the office of the ICRC in Sidon in Lebanon. When I explained the purpose of the trip, the head of the office almost breathed a sigh of relief. For the ICRC had been responsible for issuing the figure of 600,000. However, in their cable to humanitarian organizations, they had said that 600,000 had been affected by the invasion. They did not claim that 600,000 had been made homeless.   

The ICRC had not corrected the figure because of their policy of neutrality and avoiding public relations spats, even though they privately decried what they knew to be a spread of false information, possibly in an effort to raise funds. They supplied a vehicle and a driver to enable us to go around Lebanon to do our counts with the understanding that the Refugee Documentation Project would take exclusive responsibility for the results. They also expressed a preference that their help not be acknowledged.

I asked if the ICRC had undertaken a count. They said that they had. I asked about the results. They were very reluctant to share them. I gave them a number of arguments why they should and assured them that I would not publish the source without their permission. Finally, they shamefacedly agreed. The shame was not about the figure, but about the method that they had arrived at their count. It was about 50% higher than the Israeli count – 40,000 had been made homeless in southern Lebanon according to their count.

They had arrived at that figure by multiplying the number of kitchen packages (pots, pans, dishes, etc.) that they had distributed and multiplied by three. They had distributed just under 13,500 kits. They had no idea of the degree of accuracy and did not compare to the actual head count that the Israelis had undertaken. Except, we told them, that the Israeli report had made a simple adding mistake. The Israeli numbers added up to 37,000 not 27,000. The Israelis were very embarrassed and allowed us to enter the war zone as we convinced them that figures issued by a research organization could be much more trusted than one publicized by a combatant, especially given the error in addition.

As it turned out, we did not have to do any counting. We discovered that in addition to the Israeli and ICRC counts, there were ten others, the most detailed and accurate by the Palestinian teachers, even though they included individuals in the count who had lost homes that they did not inhabit but rented out to guest workers for years. But they recorded that fact. There were other more or less similar counts, such as one by the municipal engineers.

We adjusted our mandate to reconciling and verifying the counts already done. The result – 40,000 Palestinians had been made homeless as a result of the Israeli invasion, ironically, the same figure as the ICRC rough estimate. The Israeli counters had missed several pockets of displaced persons, hence their undercount by 3,000. We published the results and they were cited by both sides in the conflict and by the international community.

The point of this story, however, is not to document the work of the York University Refugee Documentation Project, but to illustrate: a) that conflicts can arise not only between humanitarian agencies and state power, but between humanitarian agencies as well; b) that principles can be maintained, but their occasional detrimental effects can be overcome using alternative methods that do not compromise the principle of avoiding arguments in the press.

My argument is that what appears to be a debate between tradition and innovation both goes deeper and becomes a debate between principles and practices versus alternative principles and practices in a case where power may hold the trump card. But not always power. The conflict may be with another humanitarian organization that compromised its integrity out of carelessness or bias or an eagerness to raise funds or some combination of these and other factors. The solution was a case in which tradition and innovation came together to complement one another.

In many situations, ICRC becomes involved in an internal debate between its traditional preference for not going public and the wrong that results from silence. In the case of the American use of torture at Abu Ghraib, ICRC determined that the tradition of retaining access to prisoners was more important than its going public; the latter would have threatened ICRC’s access. On the other hand, not going public opened the ICRC to a charge of complicity with, as my Geneva colleague suggested, the failure to make the abuse public eroded the moral authority of the ICRC.

Independence, impartiality and neutrality are aspirational goals and principles. When to compromise, when to bend, when to find alternative ways around a conundrum, depend on the context and the skills of the players involved. A wall was generally not the answer. Communicating through the pores and openings in the wall and finding a solution that respected both was the answer. The logic was not one of either/or but of both/and. Except!

Except, some cases are clear. A wall may indeed be needed. As my colleague Danny Warner commented, “The World Economic Forum touts itself as ‘an independent international organization committed to improving the state of the world by engaging business, political, academic and other leaders of society to shape global, regional and industry agendas.’ Shaping ‘global, regional and industrial agendas’ is a far cry from ‘preventing or alleviating the horrors of war.’ Peter Maurer’s membership in the WEF’s Foundation Board calls into question the ICRC’s humanitarian mandate and the essential separation of the humanitarian from business and politics.”

 

With the help of Alex Zisman